Rajesh Purushottam ... vs Bhikhalal Samarthaji Parmar
2022 Latest Caselaw 1423 Guj

     C/SCA/1220/2021                               JUDGMENT DATED: 08/02/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 1220 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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      Whether Reporters of Local              Papers   may be
 1                                                                        NO
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                               YES

      Whether their Lordships wish to see the fair copy
 3                                                                        NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                    NO
   of India or any order made thereunder ?

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  RAJESH PURUSHOTTAM CHATURANITHROUGH HIS POWER OF
              ATTORNEYPRAKASH HIRJI HADIYA
                            Versus
              BHIKHALAL SAMARTHAJI PARMAR
=======================================
Appearance:
TIRTH N BHATT(8487) for the Petitioner(s) No. 1
MR RAJU K KOTHARI(2789) for the Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 08/02/2022

                           ORAL JUDGMENT

1. Rule. Learned advocate Mr. Y. N. Ravani with learned advocate Mr. Raju K. Kothari for the respondent. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.

C/SCA/1220/2021 JUDGMENT DATED: 08/02/2022

2. This petition under Article 227 of the Constitution of India is filed by the petitioner praying for to quash and set aside the judgment and order dated 01.08.2018 passed by the learned 3 rd Additional District Judge, Gandhidham - Kachchh in Civil Misc. Application No. 39 of 2016 and to condone the delay of 151 days in filing the appeal.

3. Heard, learned advocate Mr. Tirth Bhatt for the petitioner and learned advocate Mr. Y. N. Ravani with learned advocate Mr. Raju K. Kothari for the respondent.

3.1 The learned advocate for the petitioner submits that the petitioner wanted to challenge the judgment and decree passed against him by filing the appeal, however, as there was delay in filing the appeal, the petitioner preferred an application for condonation of delay, however, the said application came to be rejected by the impugned order and hence, the petitioner is before this Court by this writ petition. The learned advocate for the petitioner submitted that during the time in question, criminal proceedings were going on against the petitioner and the petitioner was in judicial custody and/or in traumatic condition due to such proceedings. He further submitted that the suit in question was pending since 1994 and the petitioner did not know about the judgment and decree passed in the said suit in the year 2016. Accordingly, in the said facts and circumstances of the case, minor delay has occurred in filing the appeal and accordingly, he urged that this petition may be allowed and delay caused in filing the appeal may be condoned.

3.2 Per contra, learned advocate Mr. Ravani for the respondent, while heavily opposing the present petition, submitted that in general, delay may be condoned where sufficient cause is shown

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and correct facts are mentioned, however, the present case is an exception thereto, where such is not the case. The petitioner was very much available and he could file the appeal in time. Further, there is suppression of material facts and on that count only, this petition may be dismissed. He submitted that the petitioner had already appointed a power of attorney to defend his cause. Further, when the suit was decreed, the petitioner was already bailed out. Accordingly, when the petitioner has not come with clean hands before this Court, present petition deserves no consideration and it is urged to be dismissed. In support, he places reliance on a decision of the Apex Court in Nazmabegam Noormohammed Rangrej @ Nazmabanu Fahimbhai v. State of Gujarat and Others, 2013(1) GLH (U.J.) 1.

4. Regard being had to the submissions made and considering the material placed on record, it appears that the respondent herein had filed a suit being Regular Civil Suit No. 87 of 1994 before the learned Additional Senior Civil Judge, Gandhidham (Kachchh), which came to be allowed vide judgment and decree dated 17.03.2016. Against the said judgment and decree, the petitioner wanted to prefer an appeal, however, in preferring the appeal, there was a delay of about 151 days and for condonation of such delay, he filed Misc. Civil Application No. 39 of 2016, which came to be rejected vide impugned judgment and order dated 01.08.2018 passed by the learned 3rd Additional District Judge, Gandhidham-Kachchh, being aggrieved of which, the petitioner is before this Court by this petition.

4.1 It is contended by the learned advocate for the petitioner that the petitioner was in judicial custody and/or in traumatic condition due to the criminal proceedings going on against him and hence, he did not know about the result of the suit, which

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was pending since 1994 and accordingly, minor delay of 151 days has occurred in filing the appeal thereagainst. Whereas, the learned advocate for the respondent has resisted such application on the count of suppression of material facts. However, what has been weighed with the Court is that indisputably, the petitioner was facing the criminal trial for the offence punishable under Section 302 Indian Penal Code, 1860 etc. and subsequently, was convicted for the same. Besides, the suit was pending since 1994 and was decided only in the year 2016. Further, the delay is of 151 days only. The learned advocate for the respondent has much emphasized on suppression of material facts, however, the fact remains that delay is of 151 days. Petitioner might have appointed power of attorney and pursued the litigation through him, however, such a fact cannot take away his legitimate right to file the appeal and get the justice on merits rather than on technicalities, simply on the ground that for few months, enlarged on bail.

4.2 At this juncture, it would be worthwhile to refer to a decision of the Apex Court in Arunima Baruah v. Union of India, rendered in Appeal (Civil) No. 2205 of 2007 on 27.04.2007, relevant of which is extracted herein below:

"On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. [See Dwarka Prasad Agarwal (D) by Lrs. and Another v B.D. Agarwal and Others (2003) 6 SCC 230 and Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., 2007 (5) SCALE 357] A person who has a grievance against a State, a forum must be provided for redressal thereof. [See Hatton and Others Vs. United Kingdom 15 BHRC 259. For reference see also Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice.

The same, however, would not mean that the court will

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have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question.

It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.

In Moody v. Cox [1917 (2) Ch 71], it was held:

"It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a Court of Equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say "No, we are well satisfied with the contract; it is a very good one for us; we affirm it". The proposition put forward by counsel for the defendants is: "It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief. With some doubt they said: "We do not think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be equitable remedy." When one asks on what principle this is supposed to be based one receives in answer

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the maxim that any one coming to equity must come with clean hands. It think the expression "clean hands" is used more often in the text books than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of Equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea 1 Cox, 318 which has been referred to shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant Hatt, appears to me to fail, and we have to consider the merits of the case."

In Halsbury's Laws of England, Fourth Edition, Vol. 16, pages 874- 876, the law is stated in the following terms:

"1303. He who seeks equity must do equity.

In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.

*** *** *** 1305. He who comes into equity must

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come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed by the maxim "he who has committed iniquity shall not have equity", and relief was refused where a transaction was based on the plaintiff's fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.

The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff's demerits."

[See also Snell's Equity, Thirtieth Edition, Pages 30-32 and Jai Narain Parasrampuria (Dead) and Others v. Pushpa Devi Saraf and Others, (2006) 7 SCC 756] In Spry on Equitable Remedies, Fourth Edition, page 5, referring to Moody v. Cox (supra) and Meyers v. Casey [(1913) 17 C.L.R. 90], it is stated :

"that the absence of clean hands is of no account "unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for". When such exceptions or qualifications are examined it becomes clear that the maxim that predicates a requirement of clean hands cannot properly be regarded as setting out a rule that is either precise or capable of satisfactory operation."

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Although the aforementioned statement of law was made in connection with a suit for specific performance of contract, the same may have a bearing in determining a case of this nature also.

4.3 Thus, the material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. Here, in the case on hand, the so called suppression is not such that it would have affected the issue in question and grant of relief.

4.4 Further, the Court has also considered the decision relied by the learned advocate for the respondent. There cannot be any dispute as regards the ratio laid down in the same, however, in the facts and circumstances of the case, the same would be of no help to the respondent. Further, as per the catena of decisions of the Apex Court, "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance the substantial justice and generally, delay in preferring the appeals are required to be condoned in the interest of justice.

4.5      Yet in another decision in Ram Nath Sao Alias Ram Nath
Sahu          and       Ors.   v.    Gobardhan      Sao        and         Ors.

MANU/SC/0135/2002: (2002) 3 SCC 195, the Court has observed that:

"But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the

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time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lies terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

(emphasis supplied)

5. In the backdrop as aforesaid, this writ petition succeeds and is allowed accordingly. The impugned judgment and order dated 01.08.2018 passed by the learned 3rd Additional District Judge, Gandhidham - Kachchh in Civil Misc. Application No. 39 of 2016 is hereby set aside and the delay of 151 days caused in preferring the appeal is hereby condoned. Rule is made absolute accordingly with no order as to costs.

[ A. C. Joshi, J. ] hiren /40